Since 2016, the Roman Catholic Diocese of Albany has been challenging a New York state law requiring insurance policies to cover abortions. State courts uphold mandate as neutral law Employment Department v. Smith. In June 2021, the Supreme Court ruled Fulton. Justices Thomas, Alito, and Gorsuch would overrule Smith. But Judges Barrett and Kavanaugh have some questions. back Fulton already decided Roman Catholic Diocese of Albany Winding all the way to the court.
In November 2021, after several re-listings, the case was heard by the Court GVR on the grounds that Fulton. Justices Thomas, Alito and Gorsuch would grant the petition. There is no reason to need a GVR because Fulton not actually changed Smith. The options are Grant or Deny. At the time, I wrote: “It is clear to me that Justices Kavanaugh and Barrett have no interest in ruling on another Free Exercise Clause case now — especially after the Court declined to review it.” maine case.
The case has been pending in state court since the release of GVR. In June 2022, the New York Court of Appeals ruled: Fulton There was no change in the relevant standards, so the diocese lost again. I observed:
and why Fulton Not changing the relevant standards? Because FultonJudges Barrett and Kavanaugh refused to veto Employment Department v. Smith, a decision that requires courts to respectfully review laws that burden religion. Even as Justices Barrett and Kavanaugh joined the conservative majority opinion, they diminished its influence.
Nearly two years later, the case was decided by the New York Court of Appeals, New York’s highest court. Not surprisingly, the court ruled against the diocese. The court held that since then Fulton No veto Smithprior New York precedent based Smith Still standing.
When the court hears the case for GVR, it may wipe the issue from the judge’s plate and conscience. But the case continues in lower courts. Lawyers on both sides diligently litigated the issue. The judge and clerk must write the opinion. The diocese continued to operate under the Sword of Damocles. However, throughout the entire process, the outcome was already determined. In 2021, there is no reason to GVR the Albany case because it was based on SmithJustices Kavanaugh and Barrett did not overturn this precedent. GVR is a waste of everyone’s time.
Here we are. Three years later Fulton Thirty months after the GVR came into effect, the case is ready for review. No doubt the diocese will submit an application for a certificate. It may meet later this year. The court is likely to approve the case and add it to its shrinking docket for arguments in February. If so, there will be a gap of almost four years between the GVR and the June 2025 ruling.And by June 2026, exactly five years later Fulton. Alternatively, the court may deny certification entirely.
If after all this deliberation we are still left with three justices dissenting on certiorari, where will we be? The court should have concluded the case in 2021 instead of wasting everyone’s time.
I realized that the symbol of the court was a turtle—slow, deliberate, careful. But this type of GVR is not like a turtle. They are like ostriches–they bury their heads in the sand and hope the problem goes away. But it never will.
Regardless, there is another case pending and the court could reconsider whether to overturn Smith. New York forces Amish schoolchildren living in remote communities to receive vaccinations that conflict with their sincere religious beliefs and the Amish way of life. District Court rules against Amish plaintiffs Miller v. McDonald’srely on Smith. The case was recently notified to the Second Circuit. Did the plaintiff expressly reserve Smith should be rejected. There is a similar case pending next month in Connecticut involving K-12 education, although I tend to think that the Amish case might be a better tool.
